General Terms and Conditions Happydemics

Version in force since April 6th, 2022

Recitals

Happydemics, a simplified joint stock liability limited company with a capital of €4.061,90, having its registered office at 73 rue de la Plaine, 75020, Paris, registered with the Paris Trade and Companies Register under number 810 129 478, ("Happydemics" or the " Provider"), has developed a technology allowing the collection and analysis of Key Performance Indicators (KPI) of brands and opinions through a SaaS platform developed by Happydemics made available to its clients, with different levels of consultancy services, allowing to carry out studies and generate digital marketing statistical reports (the "Services").

The Customer as identified in the Purchase Order (the "Customer'), wishes to use the Services according to the terms and offers described herein for its own personal use or for and on behalf of Customer's own clients or of the entities of the Customer's group (the "Beneficiary"). 

Happydemics and the Customer are hereinafter referred to individually or collectively as the "Party" or "Parties".

The Customer acknowledges that it has received and/or obtained all the necessary information from Happydemics to verify the adequacy of the Services to the Customer's and/or the Beneficiary's needs, as the case may be. 

These Terms and Conditions (the "Terms and Conditions"), together with any special conditions or any Purchase Order executed by the Customer (the "Purchase Order(s)") govern the contractual relationship between Happydemics and the Customer regarding the provision of Services and prevail over any other document such as the Customer's terms and conditions, advertising or marketing documents and together form the agreement between the Parties (the "Agreement").

1. DEFINITIONS

Terms beginning with a capital letter have either the definition assigned to them directly in the text, including its preamble, or the following definition:

  • (i) Assistance - Means the support services aimed at answering Users' questions regarding the use of the Platform and its functionalities regardless of the offer subscribed to by the Customer as described in Section 9.
  • (ii) Configuration - Means the personalization and setup of the Platform, the selection and customisation of the indicators required to produce the Reports and of the questionnaire template used to produce the Reports as described in the Summary;
  • (iii) Credit - Means the unit of measurement of the Services to which a degressive price is associated depending on the volume selected by the Customer and subscribed to through a Purchase Order allowing the Customer to order Reports directly from the Platform, it being specified that the indication for each Service of the number of Credits required to benefit from such Service is accessible on the Purchase Order or Happydemics' commercial proposal, if applicable.
  • (iv) Explore Offer - Means the offer allowing the Customer to order from Happydemics the creation of in-depth and on-demand Reports to enrich the Customer 's market knowledge, Happydemics being in charge of gathering, processing the Respondents' Data and presenting the Report according to the terms agreed with the Customer;
  • (v) Monitor Offer - Means the offer allowing the Customer to carry out the studies to generate Reports regarding the brand performance measurements indicators autonomously through the Platform using the indicators selected by the Customer and the predefined questionnaire drawn up as part of the Configuration; 
  • (vi) Platform - Means the dashboard accessible in SaaS mode allowing the Customer to follow the consumption of Credits and to obtain the estimated cost of Reports based on the number of Credits subscribed to, to access, order and/or generate Reports according to the conditions and modalities described on the Purchase Order or Happydemics' commercial proposal, if applicable;
  • (vii) Purchase Order - Means the document which identifies the Customer, executed or validated by the Customer on the Platform specifying the number of Credits subscribed by the Customer, the type of offer chosen when the information is available or, in the case of an order for a Report under the Explore Offer, the Summary.
  • (viii) Report - Means the deliverable generated from the Respondent Data provided in the form of a statistical report.
  • (ix) Respondents - Means the categories of persons identified and/or selected to answer the questionnaires; 
  • (x) Respondent Data Means the Respondents' answers to the questionnaire created and broadcasted by Happydemics. 
  • (xi) Summary - Means the characteristics of a Report under the Explore Offering and of the parameters of the Configuration agreed upon by the Parties and which is made available to the Customer in the conditions provided herein.
  • (xii) Training: Means the Users' training to use the Platform and to consult and/or produce the Reports according to the User Profiles under the conditions set out herein regardless of the offer chosen by the Customer; 
  • (xiii) User - Refers to the person under the Customer's responsibility (employee, advertiser, agent) who is granted an access to the Platform in accordance with the User Profile assigned to him/her and the rights that have been allocated accordingly.
  • (xiv) User Profiles - Means the different user profiles "Admin", "Member" or "Guest" which can be attributed to Users and which set the access rights on the Platform and the actions which they are authorised or not to do in accordance with the description of the User Profiles accessible on the Purchase Order or Happydemics' commercial proposal, if applicable.

2. PURPOSE - DESCRIPTION OF SERVICES

The purpose of the Agreement is to set out the conditions under which Happydemics provides the Services ordered under an Purchase Order, namely (i) access to and use of the Platform and the hosting of data generated in the context of this use, (ii) the Configuration, Training and access to the functionalities depending on the Monitor or Explore Offer (iii) support to the Customer in generating the Reports and the provision of the Reports on the Platform within the framework of the Explore or Monitor Offer and (iv) the provision of the Assistance, support and maintenance.

3. CREDIT SUBSCRIPTION AND ORDERING THE SERVICES

In order to benefit from the Services, the Customer executes an Purchase Order referring to the Terms and Conditions and subscribes to a determined number of Credits.

The Purchase Order includes in particular the following items: 

• Customer identification,

• Number of Credits subscribed by the Customer, 

• Term of the Agreement of twelve (12) months,

• Identification of the offer selected by the Customer and number of Reports ordered when known at the date of subscription, 

• Price and payment method agreed with the Customer. 

Credits allow the Customer to order (i) Reports as part of the Explore and/or Monitor Offer and (ii) additional services to the Reports (new variables, translation of a questionnaire or a Report, etc.), it being specified that each Report or additional Service corresponds to a given number of Credits. In any event, ordering a Reports is done directly from the Platform, and Customer can allocate freely the consumption of the Credits ordered during the term of the Agreement. 

Each Report ordered / launched results in the deduction of the corresponding number of Credits from the Credit balance immediately. In any event, the Customer cannot modify or cancel the order for Reports and/or additional services once the Summary is made available.

The Customer can follow the Credit balance and the average price of the Reports according to consumption assumptions directly from the dashboard tracking his Credit consumption and the Reports cost simulator accessible on the Platform. 

In all cases, Credits must be used and Reports launched by the Customer within twelve (12) months of the execution of the Purchase Order or the Effective Date indicated in the Purchase Order, unless otherwise specified in the Purchase Order. Unless otherwise agreed by the Parties, if the Customer has not used all of the Credits at the end of this twelve (12) month period, the Credits will be lost. 

The number of Credits subscribed to may be increased by the Customer during the term of the Agreement, up to a maximum of 19 new Credits, which will need the execution of an additional Purchase Order. These new Credits must be used during the then-current term of the Agreement. If the Customer wishes to subscribe to 20 new Credits or more, the Customer must renew the Agreement for a new twelve (12) month period and will execute a new Purchase Order. In both instances, Happydemics reserves the right to condition the subscription of new Credits to the payment by the Customer of all amounts that remain due/payable under the current Purchase Order.

4. TRAINING SERVICES

Training is limited to three (3) hours provided according to the terms agreed with the Customer and for the number of Users initially identified to follow the Training, it being specified that the Parties undertake to organize the Training rapidly so as not to delay the first use of the Platform by Users and the subsequent ordering of Reports.

The Customer agrees to choose skilled and trained Users to follow the Training, since once the Training has been provided, the Users will be deemed able to use the Platform independently and without any help from Happydemics other than that required for Assistance, support and maintenance.

The Customer acknowledges that adding new Users to those initially trained or their replacement does not imply any right to a new Training. In this case, either the Customer is able to train the new Users with the information acquired during the Training, or the Customer requests additional Training from Happydemics, which will be charged three (3) Credits per training hour.

Once a Training date has been agreed between the Parties, Customer expressly acknowledges that any cancellation less than five (5) business days prior to the agreed date will not result in a refund of the corresponding Credits.

The Customer acknowledges that the Assistance is not intended to replace a lack of training of the Customer and the Users.

Once the Training has been provided, the information shared during the Training remains freely and permanently accessible by the Users from the Platform through various resources accessible in the form of videos and articles.

5. GENERATING REPORT & HAPPYDEMICS METHODOLOGY

Regardless of the offer selected by the Customer, the Reports are carried out using Respondent Data obtained by Happydemics (i) either through digital advertising inventory, i.e. the purchase by Happydemics of advertising space on social networks, the Customer's website or other websites/mobile applications in order to broadcast the questionnaire and to collect the answers in accordance with Happydemics' working methodology as described on its website and, when needed, which has been explained to the Customer, or (ii) from the database provided by the Customer to Happydemics in accordance with the terms agreed upon between the Parties. In all cases, the finalized Reports are made available to the Customer on the Platform and can be viewed by the Users for the entire duration of the Agreement without being modified. 

Except as otherwise provided in the Order Form, all of the deadlines indicated in the Contract including the deadlines for submitting a Study are provided as a rough guide only. Once completed, the Studies are made available to the Client and can be viewed and downloaded from the Platform.

Happydemics will only launch a Study when it has received the express consent of the Client in this regard, which may be established using any written means at the convenience of the Parties, including email, for example.

Happydemics will be deemed to have provided the Studies when the Client has been notified of the availability of the Study on the Platform. In the absence of any reservations relating to the Studies sent in writing to Happydemics within five (5) working days of the said Studies being made available on the Platform, the Studies provided will be deemed to be in full compliance. In the event of a reservation sent according to the aforementioned provision, Happydemics agrees to use its best efforts to send the Client a new compliant version of the Studies.

6. CONFIGURATION

Generating Reports implies that the Configuration has been carried out according to the conditions and terms indicated on the Purchase Order or Happydemics' commercial proposal, if applicable. 

If the Customer has additional needs in terms of Configuration, Happydemics will be able to provide additional services which will require the execution of a new Purchase Order for additional Credits in accordance with the financial terms on the Purchase Order or Happydemics' commercial proposal, if applicable.

Once the Platform is made available, the Configuration delivered and the Training provided, the Customer is deemed to be able to generate the Reports independently and without Happydemics' help, except for the Assistance.

The Parties can agree that the Customer will provided to Happydemics a database of Respondents to be integrated to and accessible from the Platform. In such a case, the Customer recognizes that he is solely responsible for the content of this database, for the collection of the Respondents' consent (if applicable) and that Happydemics cannot incur any liability in relation to this.

Unless otherwise indicated on the Platform or in the Summary, the deadlines for the delivery of a Report indicated by Happydemics to the Customer are for information only. Once finalized, the Reports are made available to the Customer and can be consulted and downloaded from the Platform.

Happydemics will be deemed to have provided the Reports and the Customer to have accepted them when the Customer has been notified the availability of the Report on the Platform.

7. REPORT AND ACCEPTANCE OF THE CONFIGURATION 

Acceptance of the Report or the Configuration, according to the offer chosen by the Customer, is carried out jointly by the Parties by reference to the Summary, either directly on the Platform, or via an email sent by Happydemics.

Notwithstanding the foregoing, acceptance of the Report under the Explore Offer may be performed directly by reference to the Purchase Order when the characteristics of the Report(s) ordered are known at the date of execution of the Purchase Order and indicated in this Purchase Order.

The Summary, or failing that, the Purchase Order includes the following information:

• In the case of the Explore Offer, an exhaustive list of the characteristics of the Report (number and profiles of Respondents e.g. age range, location, indicative timeframe for the completion of the Report, number of consumed Credits;

• In the case of the Monitor Offer, the characteristics of the Configuration (list of selected indicators / KPIs), number of consumed Credits;

• In both cases, the provision of a database of potential Respondents.

Acceptance starts as soon as the configured Platform is made available to the Customer.

From this date, the Customer has five (5) business days to accept the Configuration, either directly on the Platform or from a link sent by email by Happydemics. 

If the Customer notices a non-compliance with the Summary or the Purchase Order, the Customer must notify such non-compliance to Happydemics within the aforementioned five (5) business day-period. In such a case, if the non-compliance is confirmed, Happydemics will verify and if necessary modify the Configuration as soon as possible without requesting additional Credits from the Customer.

If, on the other hand, the Customer has not expressed any written non-compliance with the above five (5) business day-period, the Customer shall be deemed to have accepted the Configuration, even in the absence of any express acceptance. Acceptance shall also be deemed if the Customer makes the Platform available to Users or launches a Report from the Platform. 

Only "Admin" type User Profiles are authorised to accept the Configuration, except in the case of delegation by an Admin of this right to a User with another User Profile subject to Happydemics' prior approval.

8. ACCESS TO THE PLATFORM

Access to the Platform is subject to the compliance by the Customer with any technical requirements communicated by Happydemics. Users access the Platform from the Customer's computers and connections using the logins created by the Customer when registering and attributed to each User according to their User Profile (the "Loggins"). The Logins are personal and confidential.

The Customer is responsible for the use of the Logins. Customer will ensure that the Platform cannot be accessed by a person not authorised by Happydemics. In the event of loss or theft of one of the Logins, the Customer will use the password reset procedure on the Platform and will receive on the email address provided during registration a link for the creation of a new password. The Customer is responsible for the security of its information system and in particular its computers and the Internet connection used to access the Platform.

The Customer shall, within the meaning of article 1204 of the French Civil Code, ensure that Users comply with the Agreement and in particular with the provision regarding the confidentiality of their Logins.

9. ASSISTANCE, SUPPORT, MAINTENANCE AND AVAILABILITY OF THE PLATFORM

Assistance is available from Monday to Friday between 10:00 a.m. to 7:00 p.m., with a maximum of 1 hour per month and per User if applicable. Assistance requests can be made by sending an email to support@happydemics.com or directly from the Platform.

The Platform is accessible 24 hours a day, 7 days a week, including Sundays and public holidays, except during maintenance periods. 

The Customer understands the technical risks inherent to using SaaS solution and requiring the use of the Internet including the interruptions that may occur. Therefore, Happydemics cannot guarantee that the Platform will be accessible and available at all times.

Access to the Platform may be occasionally suspended due to unavailability or slowdowns resulting from maintenance operations such as those necessary for the proper functioning of the servers on which the Platform is hosted. Happydemics will make its best to inform the Customer of any case of scheduled unavailability of the Platform. 

Maintenance operations directly performed by Happydemics are normally carried out outside business days and hours, except in special cases, in particular in the case of a blocking / major error or emergency.

In case of unavailability or malfunctioning of the Platform, the Identified Users can notify Happydemics during the hours and under the conditions provided for the Assistance. Any notification by telephone must be confirmed by email as soon as possible. 

Happydemics undertakes to use its best efforts to correct any blocking or major error and to ensure that the Platform functions correctly at all times. 

10. RIGHT TO USE THE SERVICES 

Happydemics grants the Customer a personal, non-exclusive, non-transferable right to access and use the Services for the entire duration of the Agreement and for the entire world. The right of use means the right to access the Platform in SaaS mode via Internet and to reproduce, distribute and more generally use the Reports for marketing research purposes for internal use to the exclusion of any other purpose and in accordance with the Terms and Conditions. The Customer may not under any circumstances make the Services available to any third party, and is strictly prohibited from any other use, in particular any adaptation, modification, translation, arrangement, decompilation of the Platform and all of part of the Reports, without this list being exhaustive. In case of modification of all or part of the Reports, the Customer undertakes to remove any logo or any item Identifying Happydemics therein.

In the event of non-compliance by the Customer with these General Terms, Happydemics may at its sole discretion suspend the Services or terminate the Agreement within the conditions set out in Section 17 without prejudice to any claim for damages.

11. PERSONAL DATA

Each of the Parties shall comply with the regulation in force regarding personal data, resulting in particular from the General Data Protection Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 natural persons with regard to the processing of personal data and on the free movement of such data (the "GDPR"), the French law n°78-17 "Informatique et Libertés" (Data Protection Act) of 6 January 1978 in its updated version, and any relevant recommendation of the CNIL (the "Data Privacy Regulation").

For the purposes of this section, the terms "Personal Data", "Processing", "Data Subject", "Data Processor", "Recipient" and "Data Breach" have the meaning set in in the Data Privacy Regulation. The Services involves Personal Data Processing, it being specified that Happydemics is likely to act either as a Data Processor, the Customer being the Data Controller, or as an independent Data Controller. In all cases, the qualification applicable to each Party, the description of the Processing and the Parties' commitments regarding each Processing are set out in the Data Privacy Appendix. 

12. CONFIDENTIALITY

Each Party undertakes to (i) keep and maintain confidential all confidential information, including Personal Data, that Is disclosed by the other Party, and in particular (ii) not to disclose the other Party's confidential information to any third party, other than employees or subcontractors on a need to know basis; and (iii) use the other Party's confidential information only for the purpose of exercising its rights and fulfilling its obligations under the Agreement.

Notwithstanding the foregoing, neither Party shall have any obligation whatsoever with respect to information that (i) is in the public domain when communicated regardless of any fault of the Party receiving, (ii) is independently developed by the receiving Party, (iii) is already known by the receiving Party prior to disclosure by the other Party, (iv) is legitimately received from a third party not subject to a confidentiality obligation, or (v) is required to be disclosed by law or a court order (in which case it should be disclosed only to the extent required and upon written notice to the providing Party).

The Parties' obligations regarding confidential information shall remain in force throughout the duration of the Agreement and as long as, after its term, the information remains confidential for the Party disclosing it and, in any event, for a period of five (5) years after the term of the Agreement.

The Parties also undertake to ensure compliance with these provisions by their staff and by any employee or third party who may intervene in any capacity whatsoever in the context of the Agreement.

13. TERM

Unless otherwise specified in the Purchase Order, the Agreement shall be effective upon execution of the initial Purchase Order and shall remain in force for a firm term of twelve (12) months from the execution of such Purchase Order, it being specified that the Purchase Order is not terminable. 

The Agreement cannot be renewed by tacit renewal, but it can be renewed for a period and for a number of Credits determined by the Parties in order to allow the Client, with the agreement of Happydemics, to carry out Reports not consumed over the initial period of the Agreement thanks to the conclusion of a new Purchase Order.

14. FINANCIAL CONDITIONS

The price for Credits is indicated in the Purchase Order and is firm for the twelve (12) month period concerned and for the number of Credits subscribed. Any additional Credits ordered will be charged at the unit Credit rate indicated in the initial Purchase Order.

Credits ordered are invoiced upon execution of the Purchase Order, and invoices are payable upon receipt. The price may, at the Customer's option, be invoiced immediately and paid in advance or be subject to monthly instalments during the term of the Agreement or a shorter period agreed upon in the Purchase Order (each monthly instalment being paid at the beginning of the month). 

In any event, Credits will be credited to the Platform after payment of the corresponding to their subscription. 

As soon as all the Credits have been used up, when the payment of the Price is made through monthly instalments and the Customer does not wish to subscribe to new Credits, Happydemics reserves the right to invoice / demand payment of the monthly instalments remaining without having to wait for the end of the current twelve (12) month period.

The sums due are paid by direct debit in accordance with the SEPA mandate attached to the invoice in case of monthly instalments or, in the case of full annual payment, by direct debit or bank transfer to the Happydemics' bank details indicated on the invoice. All sums paid are non-refundable, except as expressly provided herein.

15. LATE/DEFAULT OF PAYMENT

In accordance with article L.441-10 of the French Commercial Code, in the event of late payment by the Customer of any amount due for any reason whatsoever within the agreed due date, Happydemics may, without prior notice, charge the Customer late payment interest corresponding to the higher of five (5) times the legal interest rate or 3% of the sums due calculated on a daily basis from the date of payment until the date of full payment, plus the applicable VAT. If the late payment interest rate defined above is lower than the minimum rate provided for in Article L441-10 of the French Commercial Code, the late payment interest will be calculated on this minimum rate. Interest is capitalized in accordance with the provisions of Article 1343-2 of the French Civil Code.

In addition, Happydemics may charge a fixed compensation recovery fees of €40 on top of the actual costs of recovery if the recovery costs incurred are above this fixed amount.

Furthermore, in case of non-payment of an invoice on the due date and without prejudice to a possible claim for damages, Happydemics may, at its discretion, without triggering Happydemics' liability on this ground (i) suspend the possibility for the Customer to use its Credits and therefore to order new Reports and/or Services, (ii) suspend the performance of the Services and in particular the access to the Platform, (iii) ask the immediate payment of all amounts due / payable under the Agreement without terminating it, or (iii) terminate the Agreement after a notice of five (5) days..

In case of early termination of the Agreement, all sums due by the Customer will be invoiced (if not already invoiced) and will be become immediately payable.

16. WARRANTIES AND LIABILITY

16.1. General provisions

Happydemics' commitments under the present Agreement are made under an obligation of means '"obligation de moyens") except regarding compliance of the number of Respondents. Happydemics warrants that the collection of data from the required number of Respondents is an essential prerequisite for generating the Report when Happydemics commits on a number of Respondents.
Happydemics will provide the necessary time and resources to fulfil and perform the Services according to the offer subscribed to by the Client. Happydemics undertakes to provide the Services with the tools and means at its disposal and to bear all the technical costs related to the performance of the Services except expenses incurred for any travel outside the Paris area that will be invoiced in addition to the Customer. 
Happydemics represents that it has the necessary expertise and means to perform the Services, and undertakes to perform the Services in accordance with the standards of the profession and the provisions of the Agreement. 
16.2. Client warranties

To generate the Reports and regardless of the offer subscribed to by the Customer, the Customer hereby authorises Happydemics to use Client's and/or the Beneficiary's brands and logos as well as any element supplied by the Customer or the Beneficiary’s (in particular when the Client is an agency launching Reports for its own client), in particular in the questionnaires or to customise the Reports. In this respect and to this end, the Customer grants to Happydemics a right to display and reproduce these elements and any other element provided for the entire world, on any support and by any process, for the duration of the protection provided for by the intellectual property conventions and texts applicable in France and abroad and their possible extensions. 

Customer is solely responsible for the quality, validity and relevance of the elements provided to Happydemics or uploaded to the Platform, whether they are its own or those of the Beneficiary. Customer also represents and warrants that it has all the rights and authorizations necessary to allow Happydemics to use the elements and contents under the conditions agreed between the Parties. Consequently, Customer shall Indemnify and hold Happydemics harmless of all consequences and liability in case of non-compliance with this warrantee, especially in the case of a request/claim by a third party.

In particular, when the Reports are carried out by Happydemics by contacting Respondents provided by the Customer, the Customer represents and warrants that the Data has been collected in compliance with the Data Privacy Regulation and, in particular, that the Respondents have been provided with all the information required to legitimate the communication and use of their data by Happydemics for the purposes of the Services and, if necessary, that all Respondents' consent have been obtained. 

The Customer recognizes that the right of opposition of the Respondents to the processing of their Data by Happydemics does not exempt the Customer from its obligation to collect their consent and undertakes to indemnify and hold Happydemics harmless of any consequence that may result from the Customer's failure to comply with these provisions.

16.3. Indemnification

Happydemics undertakes to indemnify and hold Customer harmless of direct damages resulting from any complaint and/or claim by a third party (other than a Beneficiary) claiming an infringement of such third party's intellectual property right which could have been infringed by the Services, provided that the Customer has notified the complaint/claim to Happydemics within ten (10) business days from receipt of such a complaint or being made aware of it. 

This indemnification obligation will not apply to any request or claim not notified within the time limit below or resulting from: (a) any damage, alteration, modification or addition made to all or part of a Service which has not been made or authorised by Happydemics; (b) any combination by the Customer / a User of all or part of a Report or use of the Platform with information, software, hardware or other technology not provided or not recommended by Happydemics; (c) any use by the Customer, a Beneficiary / a User of all or part of a Report or more generally of the Services in a manner not authorized by the Agreement ; (d) all elements provided by the Customer namely the brands and logo of the Customer or the Beneficiary and (e) any request or action regarding the infringement of intellectual property rights which are not those that Happydemics has granted to the Customer through the Agreement.

The foregoing provisions set out the only remedies available to the Customer and the limits of the indemnification obligation provided by Happydemics.

16.4. Liability

Happydemics' liability can only be triggered in the case of a proven default or negligence directly attributable to Happydemics and is limited to direct damages suffered by the Customer to the exclusion of any indirect prejudice of any nature whatsoever, such as in particular any loss of data, chance, revenue, opportunity, results or profits.

Happydemics' liability to the Customer resulting from or in connection with the Agreement (except in the case of gross negligence or wilful misconduct), for all contractual matters, shall in no circumstances exceed a sum equal to 50% of the total fees paid by the Customer for the relevant Purchase Order during the last twelve (12) months immediately preceding the event which gave rise to the liability.

In case of gross negligence, fraud, intentional fault or physical injury, the total amount of damages due by Happydemics to the Customer resulting from or in connection with the Agreement cannot be limited. 

The Parties acknowledge that the above limitations of liabilities do not deprive the Parties’ essential obligations, that they are consistent and balanced with the Parties’ interests at stake and have been discussed in good faith. 

16.5. Insurance

Each of the Parties represents and warrants that they have subscribed to an insurance policy, with a reputable insurance company, covering the consequences of their professional liability due to any damage resulting from the breach of their obligations herein and more generally from their activities. Each Party commits to maintain this policy or an equivalent policy in force during the Agreement’s term and be able to justify it to the other Party upon request. 

17. TERMINATION

Either party may terminate this Agreement if the other party materially breaches the terms of the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice sent by registered mail with acknowledgement of receipt from the non-breaching party describing the nature of the breach in reasonable detail and which has remained without effect. The Customer's material obligations herein relate to the obligations (i) to pay (ii) to use the Platform and the Reports and more generally the Services in accordance with the Agreement and applicable laws. Happydemics' material failures giving right to termination are: (i) failure to reach the number of Respondents three (3) consecutive times or (ii) unavailability of the Platform for five (5) continuous business days.

In the event of termination of the Agreement, the Reports in progress shall continue until their completion but no new Report can be launched, Purchase Order can be executed nor can any Summary provided by Happydemics. In the event of termination of the Agreement due to Happydemics' default and if Happydemics has received all payments due under the Agreement, Happydemics will pay a fixed indemnity corresponding to the proportion of Credits not consumed, as sole and only remedy. 

The fact that the Customer does not or no longer uses the Platform nor order Reports does not result in the suspension of the Agreement, the obligations to pay all amounts due / payable under the Agreement remaining in full force and effect.

At the end of the Agreement and at the latest on the last day of the completion of a Report in the case that this would have led to the extension of the Agreement duration, Happydemics will delete the data generated by the use of the Platform, and in particular the data associated with the Users accounts, independently of the data whose conversation would be justified by a legal obligation attributable to Happydemics. Notwithstanding the above, Happydemics will keep the Reports on the Platform for a period of twelve (12) months in order to allow any Customer who executes a new Purchase Order during this period to benefit from its history. 

18. SOCIAL OBLIGATIONS

Happydemics guarantees, under the Agreement, that it complies with French Labour Law. Therefore, Happydemics certifies having filled the declarations required by the social protection entities and having complied with its obligations under articles L. 8221-3 and L. 8221-5 of the Labour Code. 

At the execution of the Agreement and every six months subject to Customer's request, Happydemics will forward to the Customer the following documents: 

- A certificate of social declaration provision and payment of social security contributions as stated under Article L. 243-15 of the French Social Security Code, issued by the social protection entity in charge of collecting social security contributions, dated less than 6 months.

- The original extract of the registration before the Companies House (K or K bis) dated less than three months. 

When Happydemics hires foreign employees and subject to the labour authorization referred to in article L.5221-2 of the French Labour Code, Happydemics provides a list of the names of the foreign employees subject to the labour authorization referred to in article L.5221-2 of the French Labour Code, this list mentioning, for each employee, his/her date of hiring, his/her nationality as well as the type and reference number of the work permit. This list is based on the employees' registry.

19. FORCE MAJEURE

Except for payment obligations, neither Party hereto shall be liable for any default, delay or failure to comply with any of its obligations under the Agreement due to a force majeure event as defined by Article 1218 of the French Civil Code.

If performance of the Agreement is temporarily prevented, performance of the Parties' obligations shall be suspended provided that this Party notifies the other Party of the force majeure event as soon as possible. If the force majeure event becomes definitive and performance of the Agreement is prevented for a continuous period of one (1) month due to an event qualified as force majeure event, either Party may terminate the Agreement immediately upon written notification sent by registered letter with acknowledgement receipt to the other Party.

20. GENERAL PROVISIONS

Updating of the Terms and Conditions. Happydemics may modify and update the General Conditions without notice. A notification will be made to the Customer by email and the revised version of the Terms and Conditions shall apply to any new Purchase Order after this notification. The Agreement can only be modified by way of an amendment executed by the Parties.

Good faith. The Customer undertakes to cooperate closely and in good faith with Happydemics in the performance of the Agreement and to provide all useful information as soon as possible.

Commercial reference. Happydemics is expressly authorized to use the Client's, the Beneficiary's or its group's name or trademarks for the purpose of carrying out the Studies. In addition, Happydemics is authorized to mention the existence of this contractual relationship and to reproduce the Client's or its group's name or brands to promote its activities and this in compliance with the rules of use of the Client's name and brands transmitted if necessary.

No Waiver. Unless otherwise provided for herein, no failure or delay by either Party in exercising any of its rights or remedies contained or referred to herein shall be deemed to be a waiver of such rights or remedies and no provision hereunder shall be deemed waived unless such waiver shall be in writing signed by such Party.

Unenforceability. The Parties, fully aware of their rights under Article 1195 of the French Civil Code, expressly exclude the application to unforeseeable circumstances, as defined in Article 1195 of the French Civil Code, regardless of circumstances beyond the Parties' control. The Parties agree to bear the risks relating to any change in circumstances unforeseeable at the time of execution of the Agreement that would make its performance excessively onerous for them, and expressly waive the right to request any renegotiation and/or judicial and/or non-judicial review of the Agreement, unless expressly stipulated otherwise in this Agreement. The Parties also expressly exclude the application of articles 1219 to 1223 of the French Civil Code, which allow in particular the judge to reduce the Parties' financial commitments or obligations in the event of a breach of their obligations.

Nullity. The invalidity or unenforceability of any of the provisions of the Agreement shall not invalidate the other provision, which shall remain in full force and effect. However, the Parties may agree, by mutual agreement, to replace such invalidated provision(s).

Transfer, assignment and subcontracting. Happydemics may subcontract all or part of the Services to one or more subcontractors of its choice and duly chosen or to transfer the Agreement or the rights and obligations arising from the Agreement to a third party at its sole discretion. In this case, these third parties will be bound by an confidentiality commitment similar to that made by Happydemics hereunder and will have to comply with similar requirements as those required by the Customer from Happydemics.

Applicable law and jurisdiction. The Agreement shall be governed by and construed in accordance with French law. Any disputes arising out or in connection with this Agreement, failing to be resolved amicably by the execution of a valid settlement agreement within thirty (30) days of receipt of a formal notice describing the dispute and referring to this provision, shall be submitted to the exclusive jurisdiction of the Paris Commercial Court.

 

SINGLE APPENDIX - DATA PRIVACY APPENDIX 

The purpose of this appendix is to identify the Processing carried out under the Agreement and to specify for each of them the qualification applicable to each Party as well as the obligations incumbent upon it in this respect in accordance with the Data Privacy Regulation.

1. IDENTIFICATION OF THE PROCESSING AND APPLICABLE QUALIFICATION

Regarding the Reports created as part of the Explore Offer, the methodology agreed upon by the Parties for the performance of the Services is the following: 

- Step 1: Happydemics collects the Data of the Respondents in order to create the Reports in any way; for example via a tag placed by Happydemics or the provision by the Customer or a third party of a database of the persons to be targeted to whom Happydemics will make the questionnaires available either by sending them, or by displaying them directly, or via a Subprocessor;

- Step 2: When the Respondent decides to answer the questionnaire, all his/her answers are sent to Happydemics which analyses them in order to generate the statistics allowing the creation of the Report, it being specified that the questionnaire does not allow for the collection of Personal Data. Analysis of the answers does not give rise to a Processing, but Happydemics carries out a Processing whose purpose is to verify that the Respondents have not answered the questionnaire several times in order not to distort the results and therefore the Reports; 

- Stage 3: Once the Reports have been finalised, Happydemics makes them available to the Customer on the Platform, which implies a Processing relating to the Users in order to manage their access to the Platform and their possible requests for Assistance, support and maintenance.

Regarding the Reports created as part of the Monitor Offer, Happydemics makes available to the Customer the configured Platform to allow the Customer to create the Reports itself. In such a case, Happydemics processes the Users Data in order to manage their right of access the Platform, their eventual requests for Assistance, support and maintenance and if necessary the hosting of the Data communicated by Customer when providing a database of potential Respondents. 

In addition, Happydemics processes its interlocutors' the Personal Data for the purpose of the performance of the Agreement: contractual negotiations, various exchanges with the Customer, requests for additional information, follow-up of the performance of the Agreement, etc.

Consequently, the execution of the Agreement and the performance of the Services imply the implementation of the following Processing:

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2. PROVISIONS APPLICABLE WHEN HAPPYDEMICS ACTS AS A DATA CONTROLLER

When Happydemics and the Customer are acting as independent Data Controllers, each Party undertakes to comply with its obligations as a Data Controller under the Data Privacy Regulation, it being specified that each Party will be liable for its own failings and will have to compensate the Data Subject if necessary without having the possibility of turning against the other Party.

3. PROVISIONS APPLICABLE WHEN HAPPYDEMICS ACTS AS A DATA PROCESSOR

In accordance with Article 28 § 3 of the RGPD, the purpose of this provision is to set out the respective rights and obligations of each Party regarding the Processing identified in This Exhibit as involving Happydemics in the capacity of Data Processor for the benefit of the Customer acting as Data Controller. The characteristics of the relevant Processing are set out in Exhibit A of this Appendix.

3.1. Happydemics’ obligations as a Data Processor

Customer's documented instructions. Happydemics undertakes to process Personal Data only based on the Customer's written and documented instructions as set out in the Agreement and to inform the Customer when an instruction appears to be in breach of the Data Privacy Regulations, in which case the Customer undertakes to communicate this information within a timeframe compatible with its consideration by Happydemics. Notwithstanding the above, Happydemics is expressly allowed to process Personal Data as a Data Controller regarding the Processing identified in this Appendix.

Confidentiality obligations. Happydemics undertakes to subject to an appropriate confidentiality obligation all persons likely to access the Customer's Personal Data, whether they are employees, collaborators, partners or subcontractors, and undertakes to provide its collaborators with appropriate training on the security measures to be implemented.

Security obligation. Happydemics undertakes to implement appropriate technical and organisational measures to ensure the security and integrity of Personal Data and Processing as described in its Security Assurance Plan available subject to Customer’s prior request. In addition, Happydemics undertakes to reasonably assist the Customer in the implementation of its own security obligation given the nature of the Processing and the information at its disposal. In such a case, the Customer remains solely liable for the implementation of Happydemics' proposals.

Customer assistance. Happydemics undertakes to provide reasonable assistance to Customer in a reasonable way, through appropriate technical and organisational measures, upon the Customer's request and to the fully extent possible, to fulfil its obligation to answer the requests for exercising the Data Subjects' rights and to carry out data protection impact assessment and prior consultations. In case Happydemics receives a Data Subject's request to exercise his/her rights, Happydemics undertakes to notify the Customer and to forward the request and not to answer it unless expressly instructed to do so by the Customer.

Data Breach Notification. In order to enable the Customer to comply with its obligation to notify the CNIL of Data Breaches, Happydemics undertakes to notify the Customer as soon as possible and if possible within 48 hours of becoming aware of any Data Breach concerning Happydemics directly or one of its Subprocessor and to reasonably assist the Customer in providing information to the CNIL and to the Data Subjects following such a Data Brach, if applicable.

Subprocessing. Happydemics is entitled by the Customer to engage Subprocessors to implement the Processing and provides the Customer with a list of its Subprocessors on the day of execution of the Agreement. If Happydemics wishes to change or appoint a new Subprocessor, Happydemics shall inform Customer by any means, and Customer may raise objections. If the Client does not object in writing within fifteen (15) days of being informed, the new Subprocessor shall be deemed to have been approved by the Client. In the event the Client objects, the Parties agree to meet to discuss the consequences of this objection and to find a solution compatible with both Parties’ interests and allowing the Agreement to continue.

Data deletion or return at the end of the Agreement. On termination of the Agreement and at the latest on the last day of the Agreement, at the Customer's option, Happydemics shall delete, anonymise or return without retaining any copy of the Customer’s Personal Data in a standard digital format, and then destroy the existing copies, unless Union or Member State law applicable to the Processing requires storage of the Personal Data.

Transfers outside the EU. In case of Personal Data transfers to a Data Recipient located in a third country, Happydemics undertakes to comply with the relevant provisions of the Data Privacy Regulation and in particular to assess the protection granted to the Personal Data by the regulation applicable in the third-country and to execute, if necessary, a binding legal document with the Data Recipient such as standard contractual clauses or binding corporate rules and to justify this at the Customer’s request, without prejudice of any additional verifications to be carried out regarding the measures ensuring the security and confidentiality of the Personal Data in the third country.

Cooperation and information communication. Happydemics undertakes to make available to the Customer within a reasonable time all useful information necessary to demonstrate its compliance with the obligations set out in this section and to allow audits to be carried out under the conditions set out in Section 5.4 hereof.

3.2. Customer’s obligations as a Data Controller

The Client undertakes:

- To comply with its obligations under the Data Privacy Regulation and especially verify that each Processing has a legal basis compliant with the Data Privacy Regulation; 

- To provide Happydemics with the relevant information and documented instructions necessary for the performance of the Agreement and the carrying out of the Processing, taking into account Happydemics’ constraints and commercial commitments with its other clients; 

- To inform Happydemics of any changes to the Processing within a timeframe compatible with their consideration by Happydemics;

- To provide Happydemics with the necessary information to update its record of processing activities as a Data Processor;

- To provide Happydemics with the contact details of its Data Protection Officer (DPO) or, where applicable, a relevant contact person for data protection matters.

3.3. Cooperation with the CNIL

The Parties shall cooperate with the CNIL at its request, in case of an inspection or a simple request for information in connection with the Processing. In case the CNIL carries out an inspection of one of the Parties in this context, the other Party undertakes to cooperate reasonably with the CNIL and to provide the information required as soon as possible, where applicable.

3.4. Audit

Customer may carry out any verification that appears useful in order to verify Happydemics’ compliance with its obligations by conducting an audit, defined as inspections carried out by Customer itself or by any external auditor that Customer may have appointed and which is bound by an appropriate confidentiality obligation. Customer remains liable for any damage caused by its auditor.

This audit may be conducted up to once a year, except in the exceptional circumstances of a Data Breach that would justify a second annual audit. The audit requires a one (1) month prior notice indicating the identity of the external auditor chosen by the Customer, if any, as well as the scope of the audit, it being understood that any penetration test will be subject to Happydemics’ prior written agreement on its terms and scope.

Happydemics may refuse the external auditor for a legitimate reason, in which case the Customer will suggest a new auditor. In case of disagreement after a third proposal, the choice of the auditor is settled by the competent court.

Happydemics may refuse access by the Customer or the external auditor to confidential, secure and shared areas and may refuse the use of a tool intended to allow the audit to be carried out if it identifies a risk for its information system and the Personal Data processed on behalf of its customers.

The results of the audit are recorded in a report which must be sent to Happydemics so that Happydemics can add its observations and reservations, it being specified that the final audit report must necessarily include Happydemics' comments.

If a dispute arises regarding compliance deviations, Customer is entitled to ask Happydemics to implement compliance operations on material non-compliances. In case of a dispute on the corrective measures to be implemented, the Parties agree to meet to consider the consequences of these measures on the performance of the Agreement.

3.5. Liability

According to Article 82 of the GDPR, Happydemics can only be held liable for damage caused by the Processing in one of the following three cases:

- Happydemics has not complied with obligations of Data Privacy Regulation specially directed to Data Processors;

- Happydemics has acted outside of Customer’s lawful instructions;

- Happydemics has acted contrary to Customer’s lawful instructions.

4. CONTACT

Each Party undertakes to provide the other with the contact details of its Data Protection Officer (DPO) or another competent contact person for data protection matters if it has not appointed a DPO (for MoovOne: data_privacy@moovone.fr). If each Party has appointed a DPO, each DPO will be provided with the Agreement and this Appendix for information. Happydemics’ DPO is Guillaume Laborde – guillaume@happydemics.com. 

EXHIBIT A TO APPENDIX 1 – PROCESSING CHARACTERISTICS

This Exhibit is intended to apply regarding the Processing identified in the Appendix for which Happydemics acts as a Data Processor on behalf of the Customer acting as a Data Controller, in this case:

- The Respondent's Personal Data collection" Processing, 

- The "Provision of the Platform Processing.

The identifying characteristics of these Processing are the following:

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List of Happydemics subprocessors:

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